Tag: Restitution

Art and Artifice: Hungary can be sued for return of Nazi looted art

Last week, … [a US] Court rejected Hungary’s motion to dismiss a claim brought against it by the heirs of Baron Mor Lipot Herzog, a well-known Jewish Hungarian art collector.

The Court found that (1) the defendants did not dispute that “rights in property” (2) the plaintiffs’ claim that the Herzog Collection was taken in violation of international law was substantial and non-frivolous, and therefore, adequately satisfied the second requirement; and (3) the defendants admitted that the museums and the university (both agencies or instrumentalities of Hungary) were in possession of the pieces of collection identified in the complaint which was sufficient to satisfy the ‘owned or operated’ requirement, ad these bodies were are engaged in “either a regular course of commercial conduct or a particular commercial transaction or act” in the US as of the commencement of the action.

More here: New York Times.

The judgment itself is available here (warning: pdf).

Finally, here is a comprehensive website devoted to the claim.

CommBank’s ‘heavy-handed’ tactics after ATM glitch: police called in

CommBank’s ‘heavy-handed’ tactics after ATM glitch: police called in

Asher Moses

April 15, 2011 – 3:45PM

Comments 123


The Commonwealth Bank is referring about 100 of its customers to police for criminal prosecution as a result of the recent ATM glitch that allowed people to overdraw their accounts, the head of the NSW Police fraud squad says.

Meanwhile, in Victoria, police confirmed that the bank referred two customers for investigation, who had been summonsed to appear in Melbourne Magistrates Court on May 13 charged with theft.

The revelations come after the bank was accused in a report on ABC radio’s AM program this morning of using “unfair and heavy-handed tactics” when trying to recover the funds that were overdrawn from accounts last month after the bank deliberately took its ATMs offline following a database maintenance glitch.

The bank, which announced a $3 billion profit for the half year ended December 31, 2010, has written to customers – including welfare recipients – threatening them with legal action if they do not repay the money in full and has also closed accounts without notice.

And here’s another story from the SMH about the issue. This is a sequel to the story blogged by Legal Eagle on Skepticlawyer, noted here, similar to an Irish story before Christmas, blogged here.

C&AG probes ‘unlawful payments’ at universities – National News, Frontpage – Independent.ie

THE state spending watchdog has begun an investigation into the “unlawful” payment of millions of euro in allowances to senior university staff, the Irish Independent has learned.

The Comptroller and Auditor General’s (C&AG) office has agreed to a request from the Higher Education Authority (HEA) to assess exactly how much was spent on unauthorised payments between 1999 and 2009.

It is understood the investigation will be completed by May.

There has been an ongoing dispute between the HEA — the agency responsible for higher education — and the universities over how much was paid to staff at colleges including UCD, Trinity College, UCC, NUI Galway and the University of Limerick.

The HEA has already told a Public Accounts Committee that it will withhold millions in funding from the universities in a bid to get the money back.

The allowances, including incentives and performance-related bonuses, were originally discovered by the C&AG in 2009

This issue is nowhere near as straightforward as the report suggests. Have a look at here.

Overactive Australian AMTs – criminal and restitutionary liability for over-withdrawals

I wrote before Christmas about overactive Bank of Ireland ATMs. Exactly the same issue has just arisen in Australia:

Consumer groups are calling on the Commonwealth Bank to explain what went wrong with its ATMs on Tuesday, with a glitch resulting in some customers withdrawing excessive amounts from the machines. Police charged two men in Sydney on Wednesday with fraud for allegedly withdrawing extra money from the faulty machines during the meltdown.

As with the Bank of Ireland ATMs, the CBA machines operated in standby mode, but if you take money to which you are not entitled, it may very well constitute theft – and even if it doesn’t, it will certainly give rise to contractual or restitutionary duties to return the overpayments. I have this news via Legal Eagle on Skepticlawyer, who argues that

… the Commonwealth Bank will definitely have recourse to recover the money from individuals who have taken advantage of the glitch in its computer processes, subject to the defence of good faith change of position. It’s my theory that one of the reasons behind the rise of unjust enrichment law is electronic banking and the mistakes which arise therein. Seriously! I’ve spoken before about the paradigm case, Chase Manhattan Bank N.A. v Israel British Bank (London) Ltd [1981] Ch 105 … There are also some Australian cases, including ANZ v Westpac (1988) 164 CLR 662 … If one took money from an ATM and did not realise that it was paid by mistake, there is a defence of good faith change of position (David Securities). … Let it be a lesson to others out there — if an ATM is malfunctioning, don’t simply take the money and tell all your friends — tell a bank employee.

The Court of Appeal on Barder v Calouori [1988] AC 20 and common mistake of fact

Richardson v Richardson [2011] EWCA Civ 79 (08 February 2011)

Lord Justice Munby

The death of the wife

17. There is no need to spend much time on the law. The principles are set out in the passage in the speech of Lord Brandon of Oakbrook in the eponymous case, Barder v Calouori [1988] AC 20, page 43, which is so well-known that it hardly requires quotation.

18. It is well recognised that the unexpected death of one of the spouses can be a Barder event. Barder itself was such a case (wife killed children and committed suicide five weeks after the ancillary relief order). There have been others in which the claim has succeeded: Smith v Smith (Smith and Others Intervening) [1992] Fam 69 (wife committed suicide within six months); Barber v Barber [1993] 1 FLR 476 (wife died of liver disease within three months); Reid v Reid [2003] EWHC 2878 (Fam), [2004] 1 FLR 736 (diabetic wife with high blood pressure died within two months). But it is not enough to show that one of the parties died unexpectedly very shortly after the hearing. What has to be shown, to quote Lord Brandon, is that the death “invalidate[s] the basis, or fundamental assumption, upon which the order was made”. Now where, as in all the cases I have mentioned, the wife’s future needs had been a central or critical factor in assessing the quantum of her award, it may not be very difficult for the surviving husband to bring his case within Lord Brandon’s test. After all the needs of a wife who in the event has lived only a matter of weeks are very different from – much less than – the needs of the same wife as assessed on the footing that she will live for years rather than weeks. But in the present case the wife’s award was based not on her needs but, as Judge Raynor recognised, on dividing the available assets equally between the parties.

19. The magnetic, indeed overwhelming, factor in this case, which in my judgment dominates above all else, is that the wife, by her labours over many years, both as a wife and as the husband’s active business partner, had earned her equal share in the matrimonial assets.

The insurance

23. Mr Dyer’s case is based on two matters which, he submits, go to show, separately or together, that the parties and the court entered into the order on the basis of mistake, alternatively that what he says was the subsequent revelation of the true state of affairs constituted a Barder event. The first is that the insurance cover was in any event limited to £2 million, whereas the damages, if the claim succeeds, may be for a sum in excess of £3 million. The second is that the insurer has avoided the policy, with the consequence that the claim may be wholly uninsured. …

37. The reality is that the husband, to adopt Sir Stephen Brown’s words, knew “the essential facts” and by the exercise of due diligence could – would – have discovered the limit of the insurance cover. He has only himself to blame for the fact that he did not take these obvious steps. Faced with a known unknown he chose to proceed without further inquiry or investigation. He cannot now be heard to say that he was mistaken. There was no vitiating mistake he can rely upon. … The ‘problem’ – the limit of the indemnity under the policy – had been there all along. Its belated discovery by the husband was not a new event; it reflected no more than his failure at the proper time to ask obvious questions about the existing state of affairs. … For the reasons I have given he has no claim based on mistake; and that is the end of it.

38. Accordingly, in my judgment, the husband’s claim insofar as it is based on his discovery of the true position in relation to the limit of cover must fail.

The insurance – avoidance by the insurer

39. So far as concerns the husband’s claim based upon the insurer’s avoidance of the policy, matters seem to me to stand in a very different position. This was not a known unknown. As Mr Dyer puts it, it was simply an unknown. …

40. Mr Dyer puts his case in two ways. Founding himself in particular on the letter from the insurer dated 30 October 2009 in which it announced that it was proposing to avoid the policy (see further below), his primary submission is that the revelation that the partnership was or might be completely uninsured was a Barder event. In the alternative, he says, there was a vitiating mistake, both parties having, when Judge Raynor made his order, believed that the claim was insured and that, accordingly, the net assets were £10,906,734 and not (as on this argument may turn out to be the case) only £8,906,734.

54. … it seems to me that the revelation of the insurer’s stance to the husband on 18 December 2009 – something of which he had no previous inkling and which due diligence on his part would not have uncovered any earlier – is a matter which he is entitled to rely upon. It is a nice question whether this is because it amounts to a vitiating mistake or to a subsequent Barder event. Initially, I preferred the latter view, though I thought and remain of the view that it makes little difference in the particular circumstances of the case. My reasoning was as follows: The husband, as I have already said, has not established that there was any consensus on the point, and in any view, on the facts as I have analysed them, the problem emerged only after Judge Raynor had made his order. I have since had the opportunity of reading in draft the judgments of Rimer and Thorpe LJJ and am persuaded by them that my initial view was wrong and that the correct analysis is, as they say, that there was a vitiating mistake. I should add that in any event I agree entirely with the powerful observations of Thorpe LJ in paragraph 86 below.

55. Accordingly, in my judgment, the husband has established that the revelation in December 2009 that the insurer had avoided the policy is a vitiating event which in principle entitles him to relief.

Lord Justice Rimer

78. I have had the advantage of reading in draft the judgments of Munby and Thorpe L.JJ. I agree with the disposition of the appeal proposed by Munby LJ and, subject only to what follows, do so for the reasons he gives.

79. There was one minor divergence of view between Munby LJ and Thorpe LJ. Whereas Munby LJ was initially inclined to regard the insurer’s avoidance of the policy as a ‘Barder event’, Thorpe LJ regards it as a ‘vitiating mistake’. As my Lords observe, the distinction, at any rate for the purposes of this appeal, appears to be an academic one. For my part, however, I respectfully agree with Thorpe LJ that it should be regarded as a ‘vitiating mistake’.

Lord Justice Thorpe

83. I have read in draft the careful and comprehensive judgment of Munby LJ. I am in complete agreement with his conclusion and the steps by which that conclusion is reached.

84. I agree with the view expressed in paragraph 54 that it matters not whether the one factor that unlocks the award of Judge Raynor is categorised as a vitiating mistake or a Barder event. However my preference is to label it ‘mistake’ rather than a Barder event.

85. The origin of the unlocking factor is the omission of the potential liability by both parties from their Forms E and subsequent disclosures. Both should have brought the risk to the judge’s notice to enable him to discharge his statutory duties comprehensively. From that mistaken presentation, for which each was separately responsible, the unlocking factor develops.

86. Cases in which a Barder event, as opposed to a vitiating factor, can be successfully argued are extremely rare, should be regarded by the specialist profession as exceedingly rare, and should not be thought to be extendable by ingenuity or the lowering of the judicially created bar.

The Art Law Blog: Court of Appeals Affirms Wildenstein Dismissal

Landscape with Three Trees 1892

“Landscape with Three Trees” (1892) by Paul Gauguin via oceansbridge.com

The New York Court of Appeals has unanimously affirmed the dismissal of a lawsuit against Guy Wildenstein arising out of the purchase of a Gauguin painting. The decision is here [warning: pdf] …

At the intermediate appellate level, one judge thought the unjust enrichment claim should have survived because, on such a claim, “there is no requirement that the aggrieved party be in privity with the party enriched at his or her expense.” But the Court of Appeals held that, although it is true that “privity is not required for an unjust enrichment claim,” such a claim will nevertheless fail “if the connection between the parties is too attenuated.”

Air tax refund firm in the wars- The Irish Times – Fri, Feb 11, 2011

Air tax refund firm in the wars

AIRTAXREFUND.COM has had a turbulent start to this year.

Ryanair has stepped up the legal pressure on the new business, which is offering to chase air tax refunds for passengers for a small fee.

On February 4th, Ryanair’s director of legal and regulatory Juliusz Komorek affairs, fired off two more letters to co-founder Brian Whelan threatening legal action. …

Whelan has been given until 5pm today [ie, Fri Feb 11, 2011] to respond. He told me the matter was with his legal advisers at William Fry. …

I’ve set out the background to this issue here.

Families seek nursing home fee repayments – The Irish Times – Fri, Jan 28, 2011

A number of medical card holders have brought High Court actions seeking repayment of nursing home fees for which they were allegedly incorrectly charged before a new law was brought in four years ago.

I wrote about this last November:

Have older people in private nursing homes received a fair deal from the State?

… I think that those who were entitled to public care but were denied it and compelled to seek private care have a claim to restitution of unjust enrichment. … (i) the state was enriched, because it was saved the otherwise inevitable expense of meeting its obligations under s52 of the [Health Act,] 1970 … Moreover, (ii) that enrichment was at the expense of the older people who were forced into private nursing homes, as it was this private care which saved the government the expense of meeting its s52 obligations. (iii) There are several possible causes of action in this context. First, many older people made private arrangements because they had no other choice; the acted under a practical compulsion or necessity in the circumstances; and such practical compulsion amounts to a cause of action in the law of restitution of unjust enrichment. Second, many older people made private arrangements in the mistaken belief that they were not entitled to access public care (indeed, that mistaken belief was induced by the state); and such a mistake also amounts to a cause of action in the law of restitution of unjust enrichment. For either of these reasons, therefore, it can be said that the state’s enrichment at the expense of the older people is an unjust enrichment. If these three enquiries are answered in the affirmative, it would mean that the plaintiffs have prima facie claims against the State. (iv) The final question then is whether the state has any defences to such claims. …